People v. Wilburn

• Decision Date: 19 September 1961
• Docket Number: Cr. 3897
• Citation: People v. Wilburn, 16 Cal.Rptr. 97, 195 Cal.App.2d 702 (Cal. App. 1961)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John WILBURN, Defendant and Appellant.

Page 97

16 Cal.Rptr. 97

195 Cal.App.2d 702

PEOPLE of the State of California, Plaintiff and Respondent, v.John WILBURN, Defendant and Appellant.

Cr. 3897.

District Court of Appeal, First District, Division 1, California.

Sept. 19, 1961.

Rehearing Denied Oct. 13, 1961.

Hearing Denied Nov. 15, 1961.

Henry C. Krivetsky, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, John L. Burton, Deputies Atty. Gen., for respondent.

PER CURIAM.

In the Superior Court of the City and County of San Franciscodefendant was charged with selling heroin, and three prior felony convictions.He pleaded guilty to the priors and was convicted on September 20, 1960 by a jury of the sale of heroin.His motion for a new trial was denied and he was sentenced to the state prison for the term prescribed by law.He appeals from the judgment and from the order denying a new trial.

This case is similar in modus operandi to People v. Givens, 191 Cal.App.2d 834, 13 Cal.Rptr. 157;People v. McKoy, 193 Cal.App.2d 104, 13 Cal.Rptr. 809andPeople v. Robison, Cal.App., 14 Cal.Rptr. 181.Also, the same San Francisco police officers, Officers Toomey and Higgins, and the same undercover agent, Willie Russell, are involved.

The gist of the operation is that the two officers search the undercover operator in an automobile and thus make sure that there are no narcotics on him.They then give him $20.One officer takes a position in a building where he can see two predetermined areas of two streets.The other officer uses an automobile.The officers communicate with each other by walkie-talkie.The undercover operator is always in the sight of one or the other officer.The operator is seen to contact an individual.He contacts a seller of narcotics, makes his buy, and then returns to the officer's automobile.One of the officers then searches him to determine that the money is gone and that no narcotics other than that handed over have been obtained.This was the procedure followed in the instant case.The undercover operator, after contacting the defendant, (he entered defendant's automobile and rode a short distance with him) returned to the officer's automobile and turned over to him a small package which was later determined to contain heroin.Search disclosed that the money was gone and that there were no other narcotics.

Three points are urged on the appeal.The first is that 'the prosecution's repeated statements commenting directly on the fact that the appellant did not take the witness stand is a violation of the provision against self-incrimination in the California Constitution.'Defendant concedes that since the 1934amendment to section 13 of article I of the state Constitution, counsel can comment on defendant's failure to explain or deny any evidence against him, but contends that this is as far as counsel can go, and that counsel cannot mention his failure to take the stand.Defendant draws a distinction between comments such as defendant'has failed to deny or explain * * *', which are admissible, and 'defendant did not take the stand to * * * explain or deny * * *'He contends that People v. Adamson, 27 Cal.2d 478, 488, 165 P.2d 3, prohibits comments on 'defendant's failure to take the stand * * *' The contention is adequately rebutted by the sentence appearing at page 486 of the Adamson opinion in 27 Cal.2d, at page 7 of 165 P.2d: 'The prosecuting attorney commented repeatedly on the failure of the defendant to take the stand.'There are many opinions of the courts holding this type of comment to be proper.'Numerous cases in this jurisdiction have held that it is proper for the prosecution to point out to the jury that the defendant has failed or refused to take the witness stand and that he has failed to explain or deny incriminating facts which have been produced against him, and especially in cases where the facts concern matters which are peculiarly within the knowledge of the defendant, as in the present case.Such comments by the court or the district attorney do not violate any constitutional rights of the defendant, and the provisions of the above-cited constitutional provision and statute have been held not to violate any provision of the United States Constitution.[Citations.]Numerous cases have upheld the right of the district attorney to so comment.[Citations.]'People v. Sauer, 163 Cal.App.2d 740, 746-747, 329 P.2d 962, 966.

Defendant's second point is that the police violated the due process of law clause of the Constitution by discouraging their informer-employee from remaining available as a witness.Defendant cites People so comment.[Citations.]'People v. Sauer People v. Diaz, 174 Cal.App.2d 799, 345 P.2d 370, each holding that the police cannot thwart an accused's attempt to locate an informant-participant by failing to disclose any information they might have as to his identity and whereabouts.Defendant does not contend, however, that such a nondisclosure took place in the instant case.Rather, he contends that the police encouraged the informant's disappearance by giving him $200 for his services and telling him they were going to make a raid on the people from whom he had made purchases, and that after the raid there would be no chance of his doing anything more for them.Paying for and terminating an informant's employment, however, is not in and of itself 'encouraging him to disappear.'What is more, this court cannot, without evidence, infer improper...